HKSAR v. Wu Wing Kit and Another
Read the full judgment text of CACC 299/2014 on BabelCite. This Court of Appeal judgment was delivered on 26 May 2016.
1. With the leave of the single judge [1] the 1 st and 2 nd appellants appealed against their conviction after trial on 25 August 2014 by District Court Judge E. Yip of separate charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. Also, they appealed against the respective sentences imposed on them in consequence of their convictions. On 19 September 2014,
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CACC 299/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 292 OF 2014 (ON APPEAL FROM DCCC NO. 1022 OF 2012)
________________ J U D G M E N T ________________ Hon Lunn VP (giving the Judgment of the Court) : 1.With the leave of the single judge [1] the 1st and 2nd appellants appealed against their conviction after trial on 25 August 2014 by District Court Judge E. Yip of separate charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. Also, they appealed against the respective sentences imposed on them in consequence of their convictions. On 19 September 2014, the 1st appellant was sentenced to 6 years’ imprisonment and the 2nd appellant to 6 years and 6 months’ imprisonment. 2.The hearing dates in January 2016 that were reserved for this appeal were occupied by an application made without notice by Mr Caplan QC on behalf of all the parties in an ongoing, related trial [2] before Anthea Pang J and a jury for an order that this Court prohibit publication of these proceedings until the conclusion of the trial. In the event, we made our order. The trial having concluded on 29 April 2016, with the conviction of all the three defendants on all counts that they faced, today we hand down a judgment in that matter. 3.By a notice of renewal of the application for leave to appeal out of time on ground 3, filed with the Court on 8 January 2016, the 2nd appellant sought to argue that the judge erred in applying the reasoning articulated in the judgment of the Court of Final Appeal in Oei Hengky Wiryo v HKSAR [3], which error led him to make no finding that he was satisfied that it was proved that the property dealt with by the 2nd appellant was the proceeds of an indictable offence. Explanation for the application being made out of time 4.In written submissions filed with the Court on 12 January 2016, Mr Owen QC explained that the renewed application for leave to appeal against conviction on ground 3 was filed lest the view be taken that, in the absence of a final decision of the full Court of Appeal, the 2nd appellant might be precluded from seeking leave to appeal to the Court of Final Appeal on ground 3 [4]. He said that was only appreciated by those representing the 2nd appellant on 7 January 2016, in consequence of which the application for renewal was filed with the Court on 8 January 2016. 5.Mr Owen pointed out that Rule 42(1) and (2) of the Criminal Appeal Rules, Cap. 221 required the Registrar respectively to notify the appellant by Form XII of the decision of the single judge and, in the event of a refusal of part or all of the application, to give the appellant notification of the refusal by forwarding to him Form XIII. However, neither form was served on the 2nd appellant or her solicitors. Form XIII required the 2nd appellant, when renewing her application for leave to appeal against conviction on ground 3, to state when the order was “handed to/posted to the appellant/appellant’s solicitor.” 6.As the single judge noted, in refusing leave to appeal on ground 3, in his judgment in Oei Hengky Wiryo v HKSAR [5], with which judgment all the other judges agreed, McHugh NPJ rejected the submissions advanced on behalf of the appellant that the decision of the House of Lords in R v Montilla & Others [6] should be followed in Hong Kong. In doing so, McHugh NPJ said, “I see no grounds for concluding that HKSAR v Wong Ping Shui & Another [7] (2001) 4 HKCFAR 29 was wrongly decided.” In that case, the Appeal Committee of the Court of Final Appeal determined that the prosecution does not have to prove that the property represents the proceeds of an indictable offence. 7.As McHugh NPJ noted, the decision of the Court of Final Appeal in Oei was made with the benefit of “full argument on the matter” [8]. Moreover, it is unambiguous. Nevertheless, Mr Owen submitted that, in light of the judgments in Li Kwok Cheung v HKSAR [9] and Pang Hang Fai v HKSAR [10], this Court would benefit from fuller argument. Conclusion 8.In light of the failure to comply with the mandatory requirements of Rule 42 of the Criminal Appeal Rules, notwithstanding the fact that the 2nd appellant’s notice to renew her application for leave to appeal against conviction is almost six months out of time, we allow the application to be renewed out of time. Nevertheless, we are satisfied that this Court is bound by the decision in Oei. Any argument that it was wrongly decided must be taken in the Court of Final Appeal, not in this Court. Accordingly, we refuse the application to appeal against conviction in so far as it is based on ground 3. The Charges 9.By Charge 1, it was alleged against the 1st appellant that:
10.By Charge 2, it was alleged against the 2nd appellant that:
In the course of the trial, the prosecution indicated that it advanced its case in respect of 17 deposits only into that bank account, to an aggregate sum of $207,571,781.59. The trial The 1st, 2nd appellants and Jack Chen 11.Jack Chen was the husband of the 2nd appellant and had been a client of the 1st appellant [11] since 2005. 462 12.Jack Chen was the executive director and joint chairman of China Jin Hui Mining Corporation Limited (“CJHM”), later renamed Natural Dairy (NZ) Holdings Limited (“NDNZ”)[12], a publicly listed company in Hong Kong. At trial, it was referred to by its stock code number, namely 462, which reference is used in this judgment. 462 held a subsidiary company, Nation Resources Limited (“NRL”). On 15 September 2009, Jack Chen resigned as an executive director and joint Chairman of 462. Goldmate 13.Jack Chen was also the majority shareholder and a director of Goldmate Securities (USA) Limited (“Goldmate”), previously named Shenlong International Investment Limited [13]. The 1st appellant: Fred Kan & Co 14.The 1st appellant was a solicitor practising in Hong Kong and a partner of the firm Fred Kan & Co. (“FKC”) [14]. The 2nd appellant : Dragon Joy 15.The 2nd appellant held the majority interest, through three New Zealand companies [15], in Dragon Joy Limited (“Dragon Joy”), which in turn held the majority shares in Global Food Holdings Limited (“GFHL”). The 2nd appellant’s interests in the three New Zealand companies were held on trust for her by Graham Chin. The UBNZ Group 16.UBNZ Trustee Limited (“UBTL”) is a company registered in New Zealand. Ms May Wang was a director and the sole shareholder of UBTL. In May 2009, UBTL held 100 percent of the shares of UBNZ Assets Holdings Limited (“UBAH”), which had agreed to acquire 22 dairy farms in New Zealand through UBNZ Funds Management Limited (“UBFM”) [16]. Walter Shum was a director of UBAH and UBFM [17]. 17.Jack Chen introduced Ms May Wang to the 1st appellant in 2008 and she had been a client of FKC since then. The UBTL and 462 agreement 18.By an agreement dated 22 May 2009, 462 agreed to purchase Ms May Wang’s interest in the New Zealand companies [18], and thereby the dairy farms. The agreement consisted of two parts. By the first part, 462 agreed to pay NZ$100 million to purchase 20% of the issued share capital of UBAH and 20% of the debt owed by UBAH to UBTL. The NZ$100 million was to be paid by monies raised in the issue of convertible notes, with a maturity date of 10 years. By the second part, 462 agreed to pay NZ$400 million for an option to purchase the remaining 80% of the issued share capital of UBAH [19]. Accordingly, the total consideration was NZ$500 million. The agreement constituted a Very Substantial Acquisition under the Listing Rules of the Stock Exchange of Hong Kong [20] (the “1st VSA”). 462: Circular/EGM 19.On 8 September 2009, a Circular was issued by 462 to its shareholders concerning the 1st VSA. On 2 October 2009, the acquisition of UBAH’s shares was approved in an EGM by the shareholders of 462 [21]. 462: Convertible Notes (CN-C) 20.On 4 December 2009, 462 entered into a Placing agreement with Sun Hung Kai Investment Services Limited (“SHKIS”) to place convertible notes, CN-C, for subscription by investors in an aggregate principal amount of HK$951 million[22]. 462 undertook that all subscription monies under the CN-C would be applied solely for the purpose of the acquisition and the general working capital of 462 and its subsidiaries. 21.Between December 2009 and September 2010, HK$842 million was raised under the CN-C [23]. 22.In the period 21 December 2009 to 2 February 2010, HK$692.27 million (equivalent to NZ$125.6 million) of the HK$842 million was remitted by SHKIS to Knight Coldicutt, a firm of solicitors in New Zealand acting as escrow trustee [24]. 23.On and between 11 February 2010 and 15 February 2010, Knight Coldicutt remitted a total of NZ$25,262,070.17 to UBTL [25]. On 2 March 2010, HK$73,736,482.56, equivalent to NZ$13,682,776.50, was remitted from UBTL to an ICBC account held by Goldmate (the “First Goldmate Account”)[26]. On the same day, HK$73.7 million was transferred from the First Goldmate Account to another ICBC account held by Goldmate (the “Second Goldmate Account”) [27]. The HK$68.95 million 24.On 11 March 2010, Goldmate transferred HK$69 million from the Second Goldmate Account back to the First Goldmate Account. On the same day, Jack Chen issued a cheque for HK$68.95 million on the First Goldmate Account in favour of FKC’s Client Account [28]. 25.An Official Receipt [29]for the transfer was signed by Ms Flora Chan and a member of the staff of the Accounts Department. The money was described as “Costs and Disbursements on Account” and the client as Goldmate. 26.On 12 March 2010, a cheque for HK$68.95 million, signed by the 1st appellant, was drawn on FKC’s Client Account in favour of the 2nd appellant, issued by the 1st appellant [30]. A payment voucher of that date, written by Ms Flora Tam, described the payment as having been made to the 2nd appellant as “C& D refund to client” [31]. The 17 payments to the bank account of the 2nd appellant 27.A total of HK$207,571,781.59, in 17 deposits, was deposited into the 2nd appellant’s HSBC bank account on and between 12 March 2010 and 26 October 2011 [32]:
The prosecution case (i) The 1st appellant 28.Ms Flora Tam, the 1st appellant’s secretary, testified that the 1st appellant told her, on a day before 11 March 2010, that Jack Chen would deposit about US$10 million into FKC’s Client Account and that the money would be transferred out the following day. He told her it was to be transferred to Jack Chen’s wife, Betty, namely the 2nd appellant. She did not recall if she was told that before or after the money was deposited into the FKC’s Client Account.[34] She said that it was possible that she had obtained the information in respect of the 2nd appellant’s bank account from Jack Chen’s personal assistant, Lulu.[35] 29.On 11 March 2010, FKC’s Client Account received a deposit of $68,950,000, which she understood to be the US$10 million, the deposit of which the 1st appellant had forewarned her. As he had instructed her, she put down Goldmate as the name of the client on the Official Receipt.[36] In cross-examination, she denied suggestions to the contrary. 30.In her experience, $68,950,000 was a large amount, rarely seen, for ‘Costs and Disbursements’ for an Initial Public Offer, acquisition of company or any work handled by the 1st appellant. The usual range was around $1,000,000. She signed the Official Receipt, dated 11 March 2010, together with a member of staff of the Accounts Department. The money was described as “Costs and Disbursements on Account” [37]. Invariably, she sought the 1st appellant’s instructions before giving instructions to the Accounts Department as to how to deal with any money credited into FKC’s Client Account. 31.Ms Rachel Fong Siu Lan, the accounts clerk of FKC, said that she prepared the Official Receipt for this money. She followed Ms Flora Tam’s instructions in using the term “Costs and Disbursements on Account”. 32.The prosecution’s case was that, from his knowledge of and involvement in the background transactions with Jack Chen and Ms May Wang, the judge could infer that the 1st appellant had knowledge or reasonable grounds to believe that the HK$68.95 million [38] represented the proceeds of an indictable offence:
(ii) The 2nd appellant 33.The prosecution’s case against the 2nd appellant was that there were no proper explanations for the large sums of monies going through her account. She had described herself as a “housewife” in both her bank account opening mandates and her application for a Hong Kong Identity Card made to the Hong Kong Immigration Department in 2009 [57].
The defence case The 1st appellant 34.The 1st appellant gave evidence at trial. He first became aware of the deposit of $68.95 million on the morning of 11 March 2010, when his secretary, Ms Flora Tam, informed him that the money was, “…in the process of coming into” FKC’s Client Account, and that he should telephone Jack Chen about it. He did so and Jack Chen told him that he wanted him to represent investors who had agreed to purchase the 2nd appellant’s entitlement, through Dragon Joy, to receive the proceeds under the VSA-2 (an agreement for GFHL to sell its production lines and certain trademarks to 462). The 1st appellant told Jack Chen that, because of a potential conflict of interest arising from his prior knowledge of the 2nd appellant’s interest in Dragon Joy, he could not represent them. So, he asked Jack Chen to take the money away. However, Jack Chen persisted in his request that the monies be deposited into FKC’s Client Account and then passed on to the 2nd appellant, explaining that the investor wanted a solicitors’ firm to acknowledge receipt of the monies. Jack Chen having explained that the matter was urgent, and in response to his request for a favour, the 1st appellant agreed to his request. In response to his request for the details of the 2nd appellant’s bank account, Jack Chen suggested that he asked Ms Flora Tam to contact Lulu, his own secretary. As a result, he instructed Ms Flora Tam to do so. 35.The 1st appellant understood Jack Chen to be the person behind Goldmate, who made the $68.95 million deposit. From his dealings in respect of the 1st and 2nd VSA, he believed that the 2nd appellant’s interest was a valuable asset and that Jack Chen had a genuine commercial reason for the deposit of the monies and their transfer to the 2nd appellant. He relied on what Jack Chen told him, namely that the money represented a payment for the purchase of the 2nd appellant’s interest in Dragon Joy. Although the 1st appellant was aware of complaints and allegations made against Jack Chen, having been a party to e-mails in various transactions, those complaints were not substantiated. There was no basis for the 1st appellant to rely on them, given Jack Chen’s solicitor’s reply to the contrary and SEHK’s eventual approval of the listing. 36.It was the 1st appellant’s case, in cross-examination and in his own evidence, that Ms Flora Tam was an unreliable witness. He had been arranging for the termination of her employment for some time prior to the transaction, due to her continued late attendance at work. In those circumstances, it was suggested that it was unlikely that the 1st appellant would have forewarned her of the anticipated deposit of US$10 million and its transfer to the bank account of Jack Chen’s wife, the 2nd appellant, if the transaction was one of money laundering. 37.It was contended that the 1st appellant did not gain from the transaction. He was not aware of any event or fact which would give rise to reasonable grounds to believe that the monies had their provenance in the commission of an indictable offence. There was no evidence that the background transactions were part of an indictable offence. An unexpected receipt of money, without more, did not point irresistibly to money laundering. Also, failure to comply with the Law Society Practice Direction P did not equate to criminality. The 2nd appellant 38.The 2nd appellant elected to give evidence at trial and provided explanations for all 17 impugned payments into her account, as well as a number of significant withdrawals. (i) VSA-2 39.The 2nd appellant testified that a total of HK$100,719,982.09, in four separate payments, was paid to her pursuant to an agreement between her and Goldmate, related to the VSA-2. In November or December 2009, Jack Chen told her that, when UBTL received cash under the 1st VSA, she would get cash from UBTL if she sold her proceeds under the 2nd VSA to Goldmate, who would then re-sell to UBTL. She did not know that Ms May Wang was connected to UBNZ. As a result, the 2nd appellant entered into an Agreement of ‘Acquisition, Intentions and Equity Transfer’, dated 8 January 2010, in which she sold her interest in GFHL to UBTL for $110 million. Wu Xiao-kang testified that he was witness to this contract, and that the parties had signed it on 1 January 2010 in Harbour Plaza Hotel. 40.Pursuant to this agreement, the first payment of $68.95 million was paid to the 2nd appellant on 12 March 2010. It was Jack Chen’s idea that the payment of HK$68.95 million was made through a solicitors’ firm, FKC. She did not know of that before the payment was made. The three subsequent payments were made to her through either Goldmate’s bank account or Jack Chen’s personal bank account. Even after the four payments were made, there was still an outstanding amount payable of $9,280,017.91. (ii) Fulao 41.A total of $21,630,567, in nine separate remittances, was received by the 2nd appellant from Weng Guang Jing between 22 June 2010 and 25 March 2011. Those payments were returns on investments made by the 2nd appellant. 42.Chen Zong Ji, testified that he had come to know the 2nd appellant in 1995. She lent him money. He had established a company called Fulao. As repayment for a loan of RMB5 million from the 2nd appellant, at his suggestion she accepted 20% of the shares of Fulao. As a result, they signed a Certificate of Shareholding, dated 21 March 2008. 43.In early 2010, the 2nd appellant acceded to Chen Zong Ji’s request for further investment in Fulao, as was evidenced by two Equity Transfer Agreements, dated 21 March 2010[70] and 2 June 2010 respectively. The later agreement provided that 20% of the shareholding held by the 2nd appellant was to be transferred to Chen Zong Ji for RMB20 million, RMB1.2 million of which was to be paid within seven days. 44.The 2nd appellant testified that the RMB20 million was remitted in seven payments from Huang Wen Ping, on behalf of Chen Zong Ji, to Weng Guang Jing, on behalf of the 2nd appellant. Subsequently, Weng Guang Jing remitted a total of HK$21,630,567, in nine separate payments, to the 2nd appellant. (iii) Loans 45.The 2nd appellant testified that the remaining four of the 17 deposits made into the 2nd appellant’s account were ‘re-deposits’, in particular repayments of various loans made by the 2nd appellant, including:
(iv) Other payments 46.The 2nd appellant provided explanations for a number of remittances that were not among the 17 impugned deposits. Reasons for Verdict Law 47.In making his findings, on his consideration of the evidence relevant to the 1st appellant in respect of Charge 1, the judge said of the element of mens rea:[72]
48.The judge went on to address the concept of ‘belief’, as articulated in the judgment of this Court in that case:[73]
49.In making his findings, on his consideration of the evidence in respect of the 2nd appellant on Charge 2, the judge adverted again in terms to the judgment of this Court and posed the same two rhetorical questions.[74] The 1st appellant 50.In the context of the controversy in the evidence of Ms Flora Tam and the 1st appellant, the judge said:[75]
51.Of the evidence of the 1st appellant, the judge said:[76]
52.Of the 1st appellant’s evidence that it was Jack Chen’s assertion to him that the $68.95 million was part of a payment to the 2nd appellant pursuant to an agreement to buy her interests arising out of the VSA-2, the judge said:[77]
53.In the context of the 1st appellant’s evidence, that he had asked Jack Chen to remove the money from the account but had been persuaded by him, on the basis that the investors who stood behind Jack Chen wished receipt of the money to be acknowledged through a solicitor’s bank account, to transfer it to the 2nd appellant, the judge said:[78]
54.Of the 1st appellant’s evidence, in which he sought to explain his role in the manner in which the payment to the 2nd appellant had been documented within FKC, the judge said:[79]
55.In the result, the judge determined:[82]
56.Of the relevance of the Law Society Practice Direction P, the judge said:[83]
57.In face of the submission made on behalf of the 1st appellant that a solicitor was entitled to be ‘agnostic’ when taking instructions from a client, the judge noted that the 1st appellant had not merely failed to get helpful answers from Jack Chen in response to his enquiries. Rather, “he did not make enquiries at all.” [84] In the context of Practice Direction P, the judge said:[85]
58.The judge determined that the 1st appellant knew of a range of “facts” relevant to the issue of his culpability in the offence with which he was charged:[86]
59.In the result, the judge determined:[87]
The 2nd appellant 60.Of the 2nd appellant’s case that four of the deposits of monies into her bank account, including the $68.95 million by a cheque drawn on FKC deposited into her account on 12 March 2010, were part payments of monies due under an agreement with Goldmate for her sale of Dragon Joy’s interests in the VSA-2, the judge determined that not only did he not believe that Wu Xiao Kang was present when the contract was signed by the 2nd appellant but also he did not believe the 2nd appellant that the contract was in existence when she received any of the four deposits of money. 61.Having noted that the $110 million transaction, “was a very substantial transaction to her,” and having observed that she knew that “Jack Chen was to make a profit by reselling her interest in GFHL to UBTL”, the judge said that the 2nd appellant had not sought any independent valuation and found:[88]
62.Having noted that the payment of $68.95 million represented, “an off-beat 62.68% of the total price of $110 million”, given that the contract required a first payment of only 50%, the judge said that the additional payment of $13.95 million was made, “for no apparent purpose.” [89] Further, the judge noted that the additional three payments were of, “odd timing and quantum.” Finally, the judge described as “bizarre” the 2nd appellant’s evidence that she had accepted Jack Chen’s explanation for failure to pay the balance of over $9.28 million on the basis that he had no more money.[90] Given the 2nd appellant’s evidence was that by that stage she had been told by Jack Chen that the purchaser was Ms May Wang, the judge said that it was “implausible” that she had not sought payment from Ms May Wang.[91] Subsequently, the judge went on to observe that the effect of the 2nd appellant’s evidence was that:[92]
Return on investments in shares of Fulao 63.Of the nine deposits said to represent the return on investments in shares in Fulao, the judge found:[93]
The remaining deposits 64.The judge noted of the four remaining deposits that they were “deposits returned to her pursuant to her withdrawal of identical or almost identical amount beforehand.” 65.Of the alleged loan of $50 million to Ms Lisa Du, which contention was advanced to explain the deposit of $50 million into the 2nd appellant’s account on 2 September 2010, having noted that “$50 million” was a very substantial amount to D2, the judge said:[94]
66.In rejecting the 2nd appellant’s evidence of the alleged loans of monies to NRL, which contention was advanced to explain the deposit into the 2nd appellant’s bank account of $24,221,420 on 18 January 2011, having noted that the sum of money was very substantial for her, the judge said:[95]
67.Of the deposit of $9,999,792.50 made to the 2nd appellant’s bank account on 8 July 2011, which the 2nd appellant testified was the return of a loan to Ms Ye Mei, the judge said:[96]
68.Of the deposit of $1 million into the bank account of the 2nd appellant on 19 October 2011, which the 2nd appellant testified was part of the repayment of a loan of $2 million to Walter Shum, the judge said:[97]
69.Similarly, the judge rejected the 2nd appellant’s testimony of having transferred $10 million to Ms Lisa Du as part of an investment with Lin Ren Hui:[98]
70.Finally, the judge rejected the testimony of the 2nd appellant and Huang Qiang in respect of an investment of RMB26 million in the coalmining business as being, “…a pack of lies to conceal withdrawals for some purpose which they do not want to reveal in their testimonies.” [99] The withdrawal in question was $30 million on 17 October 2011. 71.Having dealt with the various transactions individually, in an overview conducted at the end of his Reasons for Verdict, the judge noted that the two major sources of deposits into the bank account of the 2nd appellant arose from the alleged contract with Goldmate and the alleged equity transfer agreement with Chen Zong Ji. Of those agreements, the judge said:[100]
72.The judge went on to make the same observation in respect of “the coalmining business with Huang Qiang or the Fuqing land with Lin Bin.” Of the 2nd appellant’s evidence that many of the withdrawals from her account were explained by loans to various people and investments, the judge noted:[101]
73.The judge went on to find that the relationships between NRL, Lisa Du and Walter Shum were “not so close” as to explain loans of that magnitude on those terms.[102] 74.Of the fact that he had been reminded by counsel for the 2nd defendant of the judgment of the Court of Final Appeal in HKSAR v Yan Sui Ling [103], in which it had been observed that, “money laundering usually involves a scheme whereby the proceeds of crime are “laundered” by transforming them into other types of property, so that they are clothed with legitimacy and their origin is concealed”, the judge said:[104]
75.The judge went on to say that the deposit of $68.95 million into the account of the 2nd appellant provided a good illustration:[105]
77.Of the conduct of the 2nd appellant, the judge concluded:[107]
78.In the result, the judge found of the 2nd appellant:[108]
79.Of those findings, the judge concluded of the 2nd appellant:[110]
Grounds of appeal against conviction The 1st appellant Ground 1 80.By ground 1 Mr Blanchflower SC submitted that, in stating that he applied the “reasonable grounds to believe” test, as set out by this Court, differently constituted, in its judgment in HKSAR v. Pang Hung Fai, the judge fell into error. First, in applying the subjective and objective tests for “reasonable grounds to believe”, whereas the Court of Final Appeal [111] determined that a single test was correct. Secondly, in applying the objective tests to a “reasonable person”. That assessment was to be made of the 1st appellant’s belief. Thirdly, in applying this Court’s definition of “belief” adopted from the judgment of the High Court Australia in George v Rockett. Fourthly, in identifying and considering the “facts”, rather than the “grounds” known to the 1st appellant. Fifthly, in applying a test of “efficiency” to determine whether the 1st appellant had reasonable grounds to believe. Ground 1A 81.It was submitted the judge incorrectly recited this Court’s test in Pang Hung Fai. Further, the judge failed to take into account the 1st appellant’s actual belief. Ground 2 82.By ground 2, it was submitted that the judge erred in finding that the 1st appellant had reasonable grounds to believe the HK$68.95 million represented the proceeds of an indictable offence. First, the judge erred in holding that a deliberate breach of Practice Direction P could prove the commission of the money laundering offence. Practice Direction P was only a guideline for solicitors. It had no legal status. Accordingly, failure to make the suggested enquiries did not constitute the requisite mens rea of the money laundering offence. Secondly, the judge erred in finding that, in not enquiring about the purpose of the transaction and the source of the money, the 1st appellant deliberately failed to follow Practice Direction P. The judge failed to consider the evidence that the 1st appellant had been told by Jack Chen about both the purpose of the transaction and the source of the money. Also, the judge was mistaken as to a solicitor’s duty regarding a client’s instructions. A solicitor is bound to adopt an agnostic approach towards his client. Their relationship is not premised on a requirement to first make enquiries of the client. 83.Thirdly, the three ‘facts’ found by the judge were insufficient to draw the only reasonable irresistible inference that the 1st appellant had the requisite grounds to believe: the money was not unusually large, in relation to the VSA-2 and the 1st appellant’s practice; the transaction was not merely from husband to wife but, according to Jack Chen’s instructions; and, even if the 1st appellant had made enquiries, there was no guarantee that he would have been made aware of the source of the money. 84.Fourthly, the judge did not consider the case from the 1st appellant’s perspective: namely, having been involved in the 1st and 2nd VSA, he believed there was a commercial purpose for the transaction; he understood the money came from Goldmate and Jack Chen was his long-standing client; Jack Chen told him the investors wanted a firm to witness the transfer; and the amount of money was not unusual. 85.Fifthly, the judge did not consider whether the money was the proceeds of an indictable offence. The $68.95 million was raised in the convertible notes fund-raising exercise. There was no evidence that it was the proceeds of an indictable offence. Ground 3 86.By ground 3, it was contended that the judge failed to properly evaluate the 1st appellant’s defence and the evidence of Ms Flora Tam. Further, before a solicitor can be convicted, the evidence against him/her must be strictly scrutinized and admit of no other reasonable conclusion. The judge did not apply such a standard nor did he consider the 1st appellant’s good character. 87.The judge erred when determining that the 1st appellant’s evidence was not credible:
88.Of Ms Flora Tam’s evidence, it was asserted that the judge failed to properly analyse her evidence: her uncertainties and failure to recollect certain parts of evidence, and how this affected her reliability and credibility. The judge erred in determining that there was a conversation between Ms Tam and the 1st appellant prior to 11 March 2010 regarding the prospective deposit of HK$68.95 million. Also, the judge failed to have regard to the fact that Ms Tam’s evidence might have been ‘tainted’ by the fact that she had been dismissed from employment by the 1st appellant. The 2nd appellant Ground 1 89.By ground 1, it was submitted that the judge erred in applying an incorrect test in respect of the ingredient of mens rea in the alleged offence. The judge erred in directing himself in accordance with the judgment of this Court in HKSAR v Pang Hung Fai, which was overruled by the Court of Final Appeal. 90.In directing himself specifically in accordance with the judgment of this Court [112] in respect of the concept of “ belief ”, relevant to the second limb of the element of mens rea in the offence, namely “having reasonable grounds to believe”, the judge had ascribed a meaning to “ belief ” that was too low and inconsistent with the judgment of the Court of Final Appeal. 91.Next, it was contended that in considering certain “facts”, rather than considering “grounds”, the judge impermissibly restricted the range of circumstances relevant to a consideration of the 2nd appellant’s state of mind. In doing so, the judge had excluded from his consideration the 2nd appellant’s “likely perception and evaluation” of all the relevant facts arising from her relationship with her husband, Jack Chen, and similarly had excluded a consideration of the 2nd appellant’s “long-term business relationship” with Chen Zhong Ji. Ground 2 92.By ground 2, it was submitted that the judge had fallen into error by failing to determine whether the deposits made to the 2nd appellant’s account, which were the subject of the charge, were the proceeds of an indictable offence or intended in furtherance of such an offence, and thereby failed to determine whether the 2nd appellant knew or had reasonable grounds to believe that the monies were the proceeds of an indictable offence. Ground 4 93.By ground 4, it was contended that, having regard to the fact the 17 impugned deposits to the 2nd appellant’s bank account came from 15 different sources and were made over a period of 19 months and in light of the judgment of this Court in HKSAR v Salim [113], the charge was duplicitous. In consequence, the 2nd appellant suffered “irredeemable prejudice”. Because the 17 separate dealings were subsumed in one charge, the judge failed to address the issue of mens rea on each of the occasions in which it was alleged the 2nd appellant dealt with the property. Ground 5 94.By ground 5, it was contended that the consequence of the judge’s finding that at all material times an unknown third party exercised control over the 2nd applicant’s account, there was no evidence of her “dealing” in any of those deposits. Ground 6 : No case to answer 95.By ground 6, it was submitted that the judge erred in rejecting an application made on behalf of the 2nd applicant that she had no case to answer, in particular in doing so on the basis that there was no admissible evidence as to her wealth and station in life. It was submitted that the assertions that the Announcement made by 462, dated 10 December 2009, in respect of the VSA-2 in which it was stated that the 2nd appellant was the beneficial owner of 83.4% of the shares in Global Food was admissible as a “public document”. In his written submissions, Mr Owen submitted that the “proper test” to be applied by the judge was that set out in the judgment of the Court of Appeal of England and Wales in R v G and F.[114] The judge’s interventions in the course of the submission demonstrated that he had applied the wrong test. Grounds 7-10 96.Grounds 7-10 address various aspects of the judge’s findings of fact. By ground 7, it was submitted that the judge erred in finding that the 2nd appellant did not know of or make enquiries as to the provenance of the four deposits made to her bank account, purportedly pursuant to the agreement with Goldmate in respect of VSA-2. 97.By ground 8, it was submitted that the judge erred in rejecting the testimony of the 2nd appellant and finding that the agreement with Goldmate was not in existence at the time that the four deposits were received in her bank account. 98.By ground 9, it was submitted that the judge erred in finding that the Equity transfer agreement in relation to the Fulao shares was false. 99.By ground 10, it was submitted that the judge erred in finding that the 2nd appellant was not the owner of the monies deposited into her bank account. Ground 11 100.By ground 11, it was contended that the judge had found that the mere fact of the deposit of substantial sums of money in the 2nd applicant’s account, in light of her “family’s vast wealth”, pointed irresistibly to the 2nd applicant having reasonable grounds to believe that the monies were the proceeds of an indictable offence. The respondent’s submissions 'Reasonable grounds to believe' 101.Mr Caplan QC acknowledged that the judge had applied the test for mens rea as set out by this Court in HKSAR v Pang Hung Fai, subsequently rejected by the Court of Final Appeal in Pang Hung Fai v HKSAR. Nevertheless, he submitted that the issue was whether the judge did properly analyse whether each of the appellants, as opposed to an objective person, had themselves either knowledge or the requisite reasonable grounds to believe, and whether he had regard to any asserted perceptions or beliefs by them. The essential matter was whether the judge had determined the facts / grounds which were known to the respective defendant and, on that basis, whether a reasonable person would have had the requisite grounds to believe and whether, in fact, the defendant himself would have had such grounds, taking into account, if credible, such perceptions or beliefs that the defendant held. 102.Mr Caplan invited this Court to note that the judge had determined of the 1st appellant that he did not, “…believe his testimony generally.” [115] Further, he rejected the 1st appellant’s testimony where it was contradicted by that of Ms Flora Tam.[116] Similarly, the judge stated on multiple occasions, in reviewing her evidence, that he did not believe the testimony of the 2nd appellant.[117] It was submitted that in those circumstances, where their explanations had been rejected, there was no direct evidence from the appellants as to their belief. It remained for the judge to make findings about the facts / grounds known to each of them respectively and determine what inferences, if any, could be drawn safely. The judge’s findings in respect of the 1st appellant 103.The Court was asked to note the range of findings that the judge had made in respect of the 1st appellant, namely that:
104.On the other hand, the judge determined of the provenance of the monies that there was no evidence of:[125]
105.It was submitted that, when the judge reached his final conclusion in respect of the 1st appellant, he dealt with his knowledge generally but made reference specifically to some of the matters only that he had determined were known to the 1st appellant.[126] The judge’s conclusion that, “…possessed of these facts, he would objectively consider them sufficient to lead a person to believe that the money constituted proceeds of an indictable offence”,[127] was a determination that with knowledge of those facts:
The judge’s findings in respect of the 2nd appellant 106.Again, the Court was asked to note the range of findings that the judge had made in respect of the 2nd appellant, namely:
107.It was submitted that in finding, “possessed of these facts, D2 would objectively consider them sufficient to lead a person to believe that the money is constituted proceeds of an indictable offence”,[131] the judge did not exclude from his consideration her relationship with Jack Chen as husband and wife. It was not the prosecution case that the monies deposited into the bank account of the 2nd appellant were ‘clean’ monies, intended for later criminal use. No case to answer 108.In respect of the submissions made on behalf of the 2nd appellant that the judge had erred in ruling that she had a case to answer on Charge 2, Mr Caplan submitted that the judge had assessed her financial position correctly. As a housewife, making no tax returns during the material time, she could not have been generating profits or income from any lawful business. Of the assertion that her substantial wealth was evidenced by the Announcement by 462 of the VSA-2 agreement, it was contended that, although it was a public document, the contents did not prove themselves and were not proof of such wealth. Given the circumstances of the transfer of the deposit of $68.95 million and the 16 other deposits, the judge was entitled to determine that the 2nd appellant had a case to answer. 109.In light of our subsequent resolution of the appeal against conviction of the appellants, it is not necessary to set out the other submissions made by the respondent in response to the other grounds of appeal against conviction. A consideration of the submissions 110.As noted earlier, in setting out the law relevant to the elements of the offence, the judge said that he did so in accordance with the judgment of this Court in HKSAR v Pang Hung Fai. Subsequent to the judge’s Reasons for Verdict, in his judgment in the Court of Final Appeal in Pang Hung Fai v HKSAR, with which judgment all the other judges agreed, Spigelman NPJ said this Court erred in determining that “a test of “could believe” was applicable to section 25(1), rather than a test of “would believe”.” [132] This Court fell into that error by its inappropriate reliance on a statement from the judgment of the High Court of Australia in George v Rockett:[133]
111.Of the submission of the respondent in the Court of Final Appeal, that the statement should be adopted as the determinative test for the phrase “reasonable grounds” in section 25(1), Spigelman NPJ said:[134]
112.It is to be noted that, although the judge said that he took the law to be that set out in the judgment of this Court in HKSAR v Pang Hung Fai, nevertheless when he came to pose the second rhetorical question in respect of each of the appellants, rather than posing the test as being “could believe” the judge posed it as being “would believe”.[135] In that respect, the judge adopted the same approach as the trial judge in Pang Hung Fai v HKSAR,where he purported to apply HKSAR v Shing Siu Ming.[136] 113.Spigelman NPJ said of the interpretation of the phrase, “having reasonable grounds to believe”:
114.Spigelman NPJ noted that the application before the Appeal Committee in Seng Yuet Fong was an appeal from the judgment of the Court in HKSAR v Shing Siu Ming [141], in which the Appeal Committee had cited a statement of this Court in which reference was made to “would” and “sufficient” without express disapproval, albeit without an “express endorsement”. Having observed that the phrase “reasonable grounds to believe” contained subjective and objective elements, this Court said: [142]
115.However, Spigelman NPJ concluded that it was likely that in the context of an application for leave to appeal, “…the possibility that the word “sufficient” constituted a significant qualification of the word “would” was not argued or readily apparent.” 116.As noted earlier, Spigelman NPJ had said earlier:[143]
117.Having noted that, “By the imposition of the same penalty, the mental element of the “reasonable grounds” alternative is regarded as being at the same level of moral obloquy as actual knowledge”, Spigelman NPJ said, “Only a test which states that those “grounds” would lead to the ‘belief’ does so.” [144] 118.Although there is some force in Mr Caplan’s submission that, given the judge’s rejection of the testimony of the appellants, the 1st appellant “generally” and the evidence of the 2nd appellant in multiple instances, there was no direct evidence of their beliefs, nevertheless it is clear that in following the judgment of this Court the judge erred in his approach to the interpretation of the phrase, “having reasonable grounds to believe”. It was an error to accept that what was required was not “even proof on the balance of probabilities.” Obviously, that approach is wholly different from a requirement that it be proved that the defendant “ought to have known” that the monies were the proceeds of an indictable offence. Conclusion 119.For those reasons alone, we are satisfied that the convictions of the appellants are unsafe and must be quashed. Ruling: no case to answer 120.The judge rejected a submission made by Mr Wong SC on behalf of the 2nd appellant, who said [145] that he relied on both limbs of Galbraith [146], that she had no case to answer on Charge 2. In doing so, he rejected submissions that, although the 2nd appellant had described herself as a housewife in application forms for a bank account and a Hong Kong Identity Card, and declared that she had no income in her tax returns to the Inland Revenue Department, the prosecution had not negated the possibility that she had substantial income and assets outside Hong Kong. He said:[147]
121.Further, the judge rejected the submission that there was evidence of her wealth in the Announcement made by 462 in respect of VSA-2.[148] The Announcement, dated 10 December 2009, stated that Global Food Holdings Limited (“Global Food”)[149] had agreed conditionally to sell to 462 its Production Lines, at :[150]
122.Furthermore, it stated that Global Food had agreed conditionally to grant an exclusive licence to the Company in respect of certain trademarks at:[151]
123.Of the Announcement, the judge noted that it was submitted that, “…shares stated to be of substantial value were held on trust for D2…therefore D2 must be regarded as a person of immense wealth.” The judge said:[152]
124.In his written submissions, Mr Owen contended that the assertions in the Announcement, that the 2nd appellant was the beneficial owner of 83.4% of the shares in Global Food, was admissible as a “public document”. Accordingly, it was submitted that the judge erred in determining that, in respect of valuation of the 2nd appellant’s shares, it was hearsay. 125.The judge went on to note that it was suggested on her behalf that the 2nd appellant’s husband, Jack Chen, a wealthy successful businessman might have made a gift of the $68.95 million to the 2nd appellant. Furthermore, the judge went on to note that by an Announcement [153], dated 2 February 2011, 462 asserted that, of the over $868 million raised in the CN-C issue, it had remitted over $314 million on 14 February 2010 to UTCL as financial assistance [154], as provided for in the agreement of 22 May 2009 and stipulated in the Circular issued by 462 on 8 September 2009. [155] The judge noted that it was suggested on behalf of the 2nd appellant that the $73 million received by Goldmate from UBTL, described in the remittance advice as being “Investment Consultancy Fees” [156], could have been monies that had their provenance in the $314 million of financial assistance provided to UTCL and properly paid to Goldmate. In those circumstances, Jack Chen was entitled to remit the monies to his wife via FKC. 126.In the context of the deposit into her account of $68.95 million, the judge found of the 2nd appellant:[157]
Discussion Law 127.In the judgment of this Court, delivered by Kempster JA, in the Attorney-General v Li Fook Shiu, Ronald [158] this Court allowed the appeal of the Attorney-General and quashed the order of the trial judge, Ryan J, discharging the defendant at trial, pursuant to section 22(1) of the Complex Commercial Crimes Ordinance, Cap. 394. Having noted that it was common ground that the applicable test was the same test applied in a submission of no case to answer, Kempster JA described the judgment of the Court of Appeal of England and Wales in R v Galbraith [159]as the “classic statement of the law” in England and Hong Kong. 128.Of the obligations of a judge in considering a submission of no case to answer at the close of the prosecution case, Kempster JA said:[160]
129.Mr Owen, who did not refer us to Attorney General v Li Fook Shiu, Ronald, relied instead upon the judgment of the Court of Appeal of England and Wales in R v Goddard & Another [161], which was not drawn to the attention of the judge. In particular, Mr Owen relied on the passage where the Court said:[162]
However, Atkins LJ went on to say:
130.With respect, we do not see that statement as leading to a different result from the test applied in Hong Kong in R v Galbraith or Attorney General v Li Fook Shiu, Ronald. Whilst we are puzzled as to why it should be thought necessary to explain or refine what was said in R v Galbraith, when the courts of England and Wales, as well as of Hong Kong, have been applying its well-understood reasoning for over 30 years, our reservations about R v Goddard are more with the way the Court has sought to explain the test than with the resulting application of it.[163] 131.In any event, the complaint that the judge’s intervention in the course of the submission of no case evidenced that he applied the wrong tests in resolving the issue was wholly unparticularised. In the context of the submission made on her behalf that the evidence adduced by the prosecution, relevant to the issue of the 2nd appellant’s assets and income, was merely of what she had stated to the Immigration Department, HSBC bank and the Inland Revenue in Hong Kong and did not address assets or income outside Hong Kong, the judge said repeatedly that he was “dealing with the half-time”.[164] No doubt, he meant that he was considering the evidence adduced in the prosecution case only. On that evidence, he was to consider whether a jury properly directed “could, may or might” be satisfied that the 2nd appellant had reasonable grounds to believe that the monies that she dealt with the proceeds of an indictable offence. 132.In that context, it is to be noted that evidence of the Financial Statements in respect of the 2nd appellant’s bank account with HSBC in Auckland, New Zealand which, with some omissions, covered the overall period July 2006 to January 2011 was not adduced into evidence until the defence case.[165] 133.Of the Announcement published by 462, dated 10 December 2009, it is to be noted, first that it was an announcement of the Board of Directors of a company. Secondly, it was stipulated on the first page of the Announcement that the SEHK disclaimed responsibility for “its accuracy or completeness”. Obviously, it was not a ‘public document’, in the sense that it was a document made by a public officer acting under a duty to accurately report or record the facts in a document to which the public has access. As the authors of ‘Criminal Evidence in Hong Kong’note [166], section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 provides that a ‘public officer’ is “any person holding an office of emolument under the government, whether such offices permanent or temporary.” The authors go on to note that, “Although the document might not qualify for admission under this head, it may be admissible under another head such as section 22 of the Evidence Ordinance.” [167] 134.On the other hand, the Announcement was a document made by company officers of 462, no doubt acting under a duty to its shareholders and creditors and to the SEHK. The issue of whether or not the provisions of section 22(1) and (3) of the Evidence Ordinance, Cap. 8 were met was not even addressed before the judge. It is anything but clear that they were met, in particular in relation to the valuation of the 2nd appellant’s shares. 135.In any event, it is clear that the issue of the valuation placed on the assets of Global Food, and thereby the value to the 2nd appellant of her indirect shareholding, was moot. That much was made clear by the statement in the Announcement that 462 was in the “process of conducting due diligence on the Production Lines and Trademarks” and that it had “also engaged legal adviser to conduct further legal due diligence exercise and to engage Jones Lang Lasalle Sallmans to prepare a valuation report as at 30 November 2009 on the Production Lines.” Furthermore, there was no evidence of the accounts of Global Food. It was not known whether or not it had accumulated losses or liabilities that would offset or diminish the value of the contingent sale of its assets. In fact, the unavailability of audited accounts was a matter raised by the judge with counsel for the 2nd appellant during the ‘no case’ submission:[168]
136.In the result, we are satisfied that, whilst there was no dispute that the 2nd appellant was the beneficial owner of 83.4% of the shares of Global Food, the judge was entitled to determine that the Announcement, per se, was not admissible and was not a reliable basis as to the “valuation of her shares”. 137.As the judge noted, in the 2nd appellant’s written applications for the issue of a Hong Kong Permanent Identity card [169] and to open a bank account with HSBC [170] the 2nd appellant described herself as a “Housewife”, in responding to the enquiry set out on the form as to “Profession / occupation” and “Employment Status” respectively. Further, it was an admitted fact that the 2nd appellant had not filed any “…tax return or made any payment or entered into any correspondence” with the Commissioner of Inland Revenue between 1 April 2007 and 31 March 2012.[171] 138.In the context of the submission made on behalf the 2nd appellant that the prosecution had not disproved the possibility of her having substantial income and assets overseas, the judge said that he had regard to the, “evidence adduced so far”. Having noted that she had described herself to the Immigration Department and HSBC as a housewife, that she had no taxable income from “salaries or properties in Hong Kong”, the judge referred to the 2nd appellant’s bank account with HSBC, which he described as, “an active account”. Nevertheless, the judge determined that the bank account, “did not show any credit balance commensurate with such a deposit or large deposits.” 139.In the 13 month period prior to the deposit into the HSBC bank account of the 2nd appellant of the first of the 17 impugned deposits a total of $12,893,813 was deposited. By contrast, the total sum of those 17 impugned deposits to the bank account in the period of the 19 months stipulated in the Particulars of Offence of Charge 2 was, as the judge noted, $207,571,781.59.[172] At the time of the first impugned deposits, namely $68.95 million, the balance in the account was $2,830,110.65. 140.In stating that he had regard to the “evidence adduced so far” no doubt the judge had regard to the fact that, apart from the deposit of a total of $950,000 in cash, whilst there was evidence of the provenance of the deposits into the 2nd appellant’s bank account their purpose was largely unexplained. Monies were deposited through remittance agents and there were remittances. Similarly, the purpose of significant withdrawals was largely unexplained. There was documentary evidenceof six loans made by the 2nd appellant to National Resources Limited, a subsidiary of 462, to a total value of over $24 million. They were made in the period 13 September to 17 November 2010, the repayment of which on 18 January 2011 was one of the 17 impugned deposits. The six loan agreements had been seized on 16 December 2010 by ICAC officers in a search of the 2nd appellant’s residence.[173] As was pointed out in the prosecution opening, and as was apparent from the documents themselves, and noted by the judge the loans were made without any provision whatsoever for interest or security. 141.Having regard to all the matters set out above, we are satisfied that the judge was entitled to rule, as he did, that the 2nd appellant had a case to answer on Charge 2. The total sum of the 17 impugned deposits was not commensurate with the earlier credit balances or the total of deposits in the 2nd appellant’s bank account. At the close of the prosecution case the reason for or purpose of most of the 17 impugned deposits was unexplained as was the use of those monies. Conclusion 142.Nevertheless, for the reasons set out earlier we allow the appeals against conviction and quash the conviction of the 1st appellant of Charge 1 and of the 2nd appellant of Charge 2. Re-trial 143.Next, we turn to consider the respondent’s application that we order the appellants to be re-tried. In the course of oral submissions, in the face of an intimation by the Court of its view that there was merit in these submissions of the appellants that the approach of the judge to the issue of mens rea was contrary to the judgment of the Court of Final Appeal in Pang Hung Fai, Mr Caplan said that, if the convictions of the appellants were quashed, he would seek a retrial, pursuant to section 83 E and F of the Criminal Procedure Ordinance, Cap. 221.[174] There was ample evidence at trial on which the appellants could have been convicted, if the judge had directed himself in law correctly. He submitted that in those circumstances, given the seriousness of the offences, it was in the interests of justice that the Court order a re-trial. Having regard to the judgment of this Court in HKSAR v Salim, he said that he would seek a re-trial of the 2nd appellant on fresh charges to reflect separately the 17 impugned deposits encompassed in Charge 2. Subsequent to the conclusion of the oral hearing, and pursuant to the request of the Court, Mr Caplan provided the Court with a draft Charge Sheet encompassing those 17 charges. Neither of the appellants availed themselves of the invitation made by the Court to make representations in respect of the proposed charges. 144.Both Mr Blanchflower and Mr Owen opposed an order that the appellants be re-tried. There was no dispute that the power to order a retrial is a discretionary power, which is part of the right of a defendant to a fair trial. Mr Blanchflower and Mr Owen each complained that the prosecution had made no attempt to prove the commission of a predicate offence against the appellants. They pointed out that in the factually related ongoing trial, in the Court of First Instance, of Jack Chen and others before Anthea Pang J and a jury [175], of two counts of conspiracy to defraud against all the defendants and one count, against Jack Chen only, of dealing in the proceeds of an indictable offence, the prosecution had set out to prove the predicate offence. The 1st appellant 145.In their most helpful written submissions, Mr Blanchflower and Ms Maggie Wong invited the Court to note that in his judgment in the Court of Final Appeal in Ting James Henry v HKSAR [176], with which all the other judges agreed, Lord Woolf NPJ said that the fact that the defendant had already undergone one trial was a factor:
146.However, as Mr Blanchflower acknowledged, Lord Woolf NPJ went on to say:[177]
147.Mr Blanchflower reminded the Court that in the judgment of this Court in HKSAR v Ng Chun To, Raymond [178], Stock VP considered the circumstances in which the powers provided by section 83 E(1) of Cap. 221 might be invoked and had reviewed, “…several key decisions which address the proper application of that provision.” [179] In the result, Mr Blanchflower submitted that, amongst the many matters to be considered, this Court was to have regard to: the seriousness of the offence; the time elapsed since the commission of the offence; the availability of evidence at a retrial; the expense and length of time of the expected retrial and the ordeal for the appellant of a retrial. 148.Next, Mr Blanchflower submitted that, relying on the judgment of this Court in R v Holgate (No. 2)in which this Court quashed the appellant’s conviction and declined to order a re-trial, in considering exercising its discretion to order a re-trial, inter alia,this Court was to have regard to, “the evidence for the prosecution and defence”.[180] All the parties were agreed as to that proposition. We are satisfied that they were correct to do so. 149.Mr Blanchflower submitted that the evidence against the 1st appellant was not strong. There was no dispute that the 1st appellant had dealt with a chose-in-action of $68.95 million in the client account of FKC. It was created by the deposit of a cheque in that amount of money drawn on the bank account of Goldmate, which was deposited into the account of FKC on 11 March 2012 and withdrawn by cheque, in the same amount drawn in favour of the 2nd appellant, on 12 March 2010 paid by internal bank transfer. He contended that the prosecution case was that, in not making enquiries about the provenance of the money and the purpose of the transaction, the 1st appellant had failed to comply with the Law Society’s Practice Direction P and that, thereby, the 1st appellant had reasonable grounds to believe that the money represented the proceeds of an indictable offence. On the contrary, Mr Blanchflower contended that, albeit that the prosecution acknowledged that the 1st appellant had no knowledge of the fund flow leading to the deposit of the $68.95 million, the prosecution evidence established that it came from monies raised in the CN-C issue and was legitimate in origin. It did not have the prescribed characteristics of the proceeds of an indictable offence. 150.Mr Blanchflower submitted that Ms Flora Tam, the 1st appellant’s then secretary, was an unreliable witness as to her conversations with the 1st appellant in respect of the transaction and as to the unusual size of the monies described in the related documents made in FKC, namely a receipt and a payment voucher, by an acronym as representing ‘Costs and Disbursements.’ By contrast, it was the 1st appellant’s evidence that on other occasions FKC had received similarly large amounts of money. Chronology of proceedings 151.Of the chronology of proceedings relevant to the 1st appellant, Mr Blanchflower reminded the Court that:
152.As a result, Mr Blanchflower submitted that the 1st appellant had already undergone a lengthy and costly trial and appeal process; a retrial would also be lengthy and costly. The 1st appellant’s personal circumstances 153. Of the 1st appellant’s personal circumstances, Mr Blanchflower informed the Court that the appellant was a married man of 59 years of age with three children aged 5, 10 and 27 years old. He had been suspended from practice from the date of his conviction in August 2014, and was subject to disciplinary proceedings. As a result, he was unable to earn a living. He had been in custody since his conviction and sentence on 25 August 2014 until he was granted bail on 19 January 2015, pending his application for leave to appeal against conviction and sentence. The 2nd appellant 154.Mr Owen complained on behalf of the 2nd appellant that the prosecution’s decision to prosecute her before the trial of Jack Chen and others on counts of committing the predicate offence was “eccentric” and “bizarre” and resulted in unfairness to the 2nd appellant. Count 3 of the trial involving Jack Chen alleged that he had dealt with money, which included monies the subject of Charge 2 against the 2nd appellant, knowing it to be the proceeds of an indictable offence. He submitted this Court ought to await the outcome of his trial before reaching a decision on whether or not to order the 2nd appellant to be retried. That was relevant to the issue of the interests of justice. We note that on 29 April 2016, Jack Chen was convicted by the unanimous verdicts of the jury of all three counts on the indictment on which he was tried. 155.Mr Owen submitted that the ultimate question that arose from the charge brought against the 2nd appellant was whether she had reasonable grounds to believe that the 17 identified deposits into her bank account represented the proceeds of an indictable offence. The context relevant to that question was, “… the crucial, undisputed fact that a significant portion of the money allegedly laundered by A2 was sourced from a sequence of very high value commercial deals to which Jack Chen and A2 were each connected in different ways.” [181] 156.Mr Owen submitted that, since it was the prosecution case that Jack Chen had concealed the commission of the frauds alleged against him in Counts 1 and 2 from everyone other than his co-conspirators, it was entirely possible that he had done so with his wife. Because the judge had not considered her personal perceptions and belief in respect of her husband, Jack Chen, Mr Owen submitted the 2nd appellant had been deprived of the opportunity of being acquitted at the trial. In his written submissions, Mr Owen contended that the 2nd appellant’s state of mind had to be viewed:[182]
157.Of the 2nd appellant’s case, he said that it was her evidence that, “all the money including the 17 deposits were her own and came from three different sources, i.e. the sale of her business interests in a contract known as the “Goldmate Contract”, the “Equity Transfer Agreement” with Mr. Chen Zong-Ji (DW5) and, thirdly, repayment of loans or investment previously advanced to others.” [183] 158.Of evidence relevant to the issue of the 2nd appellant’s wealth, Mr Owen pointed to evidence led in the defence case of a bank account in her name with HSBC in Auckland.[184] Financial Statements, over the period July 2006 to January 2011, evidenced a fluctuating net portfolio position : a maximum in the month of July 2006 of over New Zealand $4.7 million; over New Zealand $2.6 million in March 2010, during which month the first of the impugned deposits, namely a deposit of $68.95 million, was made to her HSBC bank account in Hong Kong; and a net position of less than $2 million for the remaining months of 2010, for those months for which there were bank statements. The 2nd appellant’s personal circumstances 159.Of the 2nd appellant’s personal circumstances, Mr Owen invited the Court to note the chronology of proceedings brought against her:
160.Mr Owen reminded the court that the 2nd appellant was a 43-year-old mother of three children with no previous criminal convictions. Further, he invited the court to have regard to a medical report, provided after oral submissions, by Dr Raymond Liang Hin Suen, dated 3 March 2016, detailing the health of the 2nd appellant’s father Mr Ne Nengxiang. Mr Ne is being treated with chemotherapy and monoclonal antibody by the doctor at the Hong Kong Sanatorium & Hospital for lymphoma, with which he was diagnosed in January 2016. A consideration of the submissions 161.In the advice of the Privy Council in Au Pui Kuen v Attorney General [185], in which the Privy Council determined that there was no material available to impugn the discretion of the majority of this Court to order a retrial, Lord Diplock said:[186]
162.Of the exercise of that discretion, Lord Diplock went on to note that:[187]
163.Finally, having noted that, “…the strength of the evidence adduced against the accused in the previous trial is clearly one of the factors to be taken into consideration” Lord Diplock said:[188]
164.As noted earlier, having adverted to an earlier passage in the judgment of Lord Diplock in Au Pui Kuen v Attorney General, in his judgment in James Ting Lord Woolf said that the fact that a defendant has already undergone one trial was, “…a factor that has to be given the greatest weight” in determining whether or not to order a retrial. 165.In giving the judgment of this Court in R v Holgate, in refusing to order a re-trial, having quashed the conviction of the appellant for maintaining a standard of living which was above that which was commensurate with his emoluments, contrary to section 10(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 Mortimer JA said:[189]
The 1st appellant 166.The undisputed documentary evidence adduced in the prosecution case relevant, in particular, to the case of the 1st appellant was that the payment of $68.95 million on a cheque dated 11 March 2010 drawn on the account of Goldmate in favour of FKC was described in a receipt made within FKC as ‘Costs and Disbursements on Account’. The client was described as Goldmate Securities (USA) Limited, with a file reference K 1212/89/MIS/Wu.[190] It was an admitted fact that Jack Chen issued the cheque.[191] 167.An FKC ‘Payment Voucher’ dated 12 March 2010, with the same description of the client and file reference, in which the 2nd appellant was described as the payee, with a stipulated HSBC bank account number, described a payment of $68.95 million, requested by Ms Flora Tam, as being “C & D Refund to client”.[192] There was no dispute that the 1st appellant had signed the ‘Approved by’ box of the Payment Voucher authorising the processing of the payment and that he had signed the cheque drawn on the account of FKC in the sum of $68.95 million in which the 2nd appellant was stipulated as the payee. 168.The HSBC bank statementsof FKC’s ‘CLIENT’S ACCOUNT’ reflected the deposit and withdrawal by cheque of the $68.95 million on 11 and 12 March 2010. Similarly, the HSBC bank statement of the bank account in the name of the 2nd appellant reflected the deposit of that sum of money into that account on 12 March 2010.[193] 169.There is no dispute that the 1st appellant was aware that on the 16th September 2004 Jack Chen had been banned for three years by the China Securities Regulatory Commission from holding positions of senior management of any listed company engaging in the securities business. The commission determined that he and Chen Kegan, as controlling shareholders of Shenlong Development, were largely responsible for the illegal acts of Shenlong Development, namely false statements published in the annual reports for 2001 and 2002, including falsely increased pre-tax profits, and for failing to publish announcements of major events of the company as required. In addition, a penalty of RMB100,000 had been imposed on Jack Chen. The 1st appellant witnessed a Form B Declaration made by Jack Chen to the Stock Exchange of Hong Kong in May 2009, at the time that Jack Chen was made a director of 462. Attached to Form B, were the two decisions of the China Securities Regulatory Commission.[194] 170.There is no dispute that the 1st appellant was aware of the resignation of Jack Chen as a director of 462 on 9 September 2009. Similarly, he was aware from an e-mail copied to him from the Stock Exchange of Hong Kong that it was concerned about the true reasons for his resignation, in which the Stock Exchange of Hong Kong also adverted to the fact that the Announcement made by 462 on 14 September 2009 made no, “mention of our decision regarding Mr Chen’s suitability to act as the Company’s director.” [195] Finally, from an e-mail from the Bank of China International sent to him, dated 15 October 2009, the 1st appellant was aware that the Bank of China International had withdrawn from their involvement in raising money for 462 because of their concerns of the continued involvement of Jack Chen in investor meetings.[196] 171.The significance of the 1st appellant’s undisputed participation in the making and processing of the payment voucher is as to his knowledge of the validity and appropriateness of the description of the particulars of the transaction as being, ‘C&D Refund to client’. It is the prosecution case that the monies were not “Costs and Disbursements”, so that they did not represent a refund of such a payment. In any event, the payment was not to a client. It was the 1st appellant’s evidence that although he signed the payment voucher authorising the payment to the 2nd appellant he “…didn’t pay attention” to the description of the particulars of the transaction.[197] 172.It was the defence case that the 1st appellant had been told that the payment of $68.95 million of money into the bank account of FKC came from investors whom Jack Chen represented. The investors were about to buy the 2nd appellant’s interest in Dragon Joy and they wanted a solicitor to witness the transfer of the money to the 2nd appellant. In his testimony in evidence-in-chief, the 1st appellant agreed that the description of Ye Fang as the client of FKC was “not correct”. He said that he had not had paid, “particular attention to minute details of this payment voucher”. In cross-examination, he agreed that the description, ‘C&D Refund to client’ was “not very accurate”. He accepted that it “would be misleading”. 173.In his testimony, the 1st appellant accepted that at the time that he had dealt with the $68.95 million deposited into the account of FKC he did not ascertain any information about the ‘investors’, on whose behalf Jack Chen told him the deposit had been made. He did not ascertain their number; their individual contributions; their identity or their nationality. He did not obtain any underlying documentation to support the transaction.[198] 174.Issue was taken at trial by the defence with the evidence of Ms Flora Tam. In particular, issue was taken that, on a day prior to 11 March 2010, the 1st appellant had told her that Jack Chen would deposit about US$10 million into FKC’s client account and that the money would be transferred out the following day. The 1st appellant denied that was the case. 175.The 1st appellant testified that after he had concluded a meeting on the morning of 11 March 2010, Ms Flora Tam had told him that Lulu, the assistant of Jack Chen, had telephoned her and told her that $68 million odd was in the process of being deposited into the account of FKC and that he was asked to call Jack Chen. He then had a telephone conversation with Jack Chen, who told him that he represented some investors who were buying the 2nd appellant’s interest in Dragon Joy. Although, because of a potential conflict of interest, he refused Jack Chen’s request that he represent those investors and asked him to take the money away, nevertheless he acceded to Jack Chen’s request to do him a favour by receiving the money and then transferring it to the 2nd appellant, suggesting that his secretary contact Lulu to get the account details. Then, the 1st appellant told Ms Flora Tam to contact Lulu to confirm deposit of the money and to obtain the details of the 2nd appellant’s bank account.[199] 176.There is some force in the submissions made by Mr Blanchflower that, in various aspects of her evidence in respect of the circumstances in which the $68.95 million was received by FKC and payment of a like amount made to the 2nd appellant, Ms Flora Tam often testified that she could not remember particular details of the various transactions. She could not remember if she had seen the Goldmate cheque before. Similarly, she could not remember, although it was possible, if she received the faxed photocopy, addressed to Ms Tam, of an HSBC ‘Transaction Advice’,[200] recording the deposit of $68.95 million to the credit of FKC on 11 March 2010.[201] She could not remember if the 1st appellant had given her instructions in one or more conversations that Jack Chen would be sending some money shortly; that it would be US$10 million; but it would be going out shortly afterwards; and that it would be going to his wife.[202] 177.On the other hand, it is to be noted that Ms Flora Tam denied the suggestion that the 1st appellant had not told her in advance that the money was coming in to the FKC bank account.[203] Also, she said that he had told her that the money would be remitted to the 2nd appellant.[204] It was possible that she obtained details of the 2nd appellant’s bank account from Lulu, the 1st appellant’s secretary.[205] 178.The resolution of conflicting oral testimony is pre-eminently a matter for a jury. We do not accept that Ms Flora Tam is a witness incapable of belief. Mindful that, if we are to order a retrial, it is appropriate that we are restrained in describing the strength of the evidence against the 1st appellant, we restrict ourselves to saying that we are satisfied that on a proper consideration of the evidence by a jury a conviction might result. 179.Although the impugned conduct of the 1st appellant occurred over a short period of time and involved relatively few acts, nevertheless we are satisfied that the alleged misconduct constituted a serious offence. It involved a significant amount of money, the transfer of which through the solicitor’s Client Account of FKC added a substantial characterisation of legitimacy to the receipt of the money by the 2nd appellant. 180.Whilst it is more than six years since the commission of the alleged offence by the 1st appellant, it is not suggested that there was any culpable delay by the prosecution. Clearly, the investigation of the overall events was complicated. In that context, the delay of almost two years after the commission of the offence on 10 March 2010 before the arrest of the 1st appellant on 28 February 2012 and a further eight months before he was charged is readily understandable. Nevertheless, the fact remains that the 1st appellant, and no doubt his family, has been under the stress of investigation, awaiting trial, the trial itself and waiting for the hearing in this court for more than four years. Further, the 1st appellant was a defendant in a lengthy and, no doubt, costly trial. We are conscious that a retrial will be an ordeal for a successful appellant. 181.As against those considerations, it is relevant to note the circumstances in which this Court has allowed the appeal and quashed the 1st appellant’s conviction, namely on the basis that the judge, as he was required, applied the law as articulated by this Court, subsequently determined to be erroneous by the Court of Final Appeal. As noted earlier, it is in the public interest that those guilty of serious crimes should be brought to justice and that justice should not be thwarted by judicial error. Also, it is to be noted that although the 1st appellant was sentenced to 6 years’ imprisonment on 19 September 2014, he was released on bail by this Court on 19 January 2015. Conclusion 182.In the result, in all circumstances, we are satisfied that it is appropriate to order, and we so order, that the 1st appellant be retried on Charge 1 on a fresh Charge Sheet. The 2nd appellant 183.As the judge noted, it was the 2nd appellant’s case that the total of $100,719,982 deposited into her account by way of four deposits into her bank account were payments pursuant to an agreement with Jack Chen to sell her interest in Dragon Joy to Goldmate for $110 million.[206]
184.The aggregate of those deposits constituted the majority of the deposits into the bank account of the 2nd appellant of what the judge described as “First Type of Deposits”, namely new monies as opposed to “Second Type of Deposits”, which were monies withdrawn earlier and returned to her later.[207] So, for example, it was the 2nd appellant’s case that the deposit of $50 million into her account on 2 September 2010 was the return of money lent to Ms Lisa Du a few days earlier, whilst the deposit of $24,221,420 on 18 January 2011 was the return of six loans to an aggregate value of that amount of money made to NRL. It is noticeable that a number of what the judge called “Second Type Deposits” were said by the 2nd appellant to be the repayment of monies advanced without provision for interest or security or without any documentation. 185.Evidence relevant to the issue of whether or not the appellant, as the wife of Jack Chen, had reasonable grounds to believe that the monies deposited in the four deposits described above into her bank account at the behest of Jack Chen were the proceeds of an indictable offence was her testimony that Jack Chen had confirmed to her what her father had told her, namely that two of them had been subjected to a penalty from the China Securities Regulatory Commission. Relevant to the issue of whether or not there had been an agreement between husband and wife for the sale of her interest in Dragon Joy are the matters to which the judge made reference in his Reasons for Verdict, including the undisputed evidence that the 2nd appellant had not obtained an independent valuation of that asset, that the alleged contract bore conflicting dates as to when it was made, the date being of importance since it was relevant to the three-month period in which 50% of the agreed price was to be paid. Further, of relevance are the idiosyncratic amounts of the payments, drawn on cheques issued by three different parties, together with the fact that the whole amount had never been paid, so that the purchase had been thwarted by the failure to pay a small amount. 186.Also, clearly relevant to a consideration of the belief(s) of the 2nd appellant in respect of the aggregate deposit of over $100 million into her bank account in the period of 13 months by those four deposits made at the behest of Jack Chen, is the evidence of her financial status at and before that time, including the matters to which the judge referred, in particular that in applying for a Hong Kong identity card, she had described herself as a housewife and then she had not filed a tax return with the Inland Revenue Department in Hong Kong in the period 1 April 2007 to 31 March 2012.[208] Similarly relevant, is the fact that the deposit of $100 million into her bank account in that period, was wholly disproportionate to the previous activity not only in that bank account but also in her bank account with HSBC in New Zealand. 187.We are conscious that it is over six years since the deposit into the bank account of the 2nd appellant of the first of the impugned sums of money, the subject of Charge 2, and that it is four and a half years since she was arrested in connection with these events. Further, that she has undergone the expense, stress and strain of a lengthy trial. Also, that an order for a re-trial will inevitably prolong the stress to which she and her family are subject and will involve further expense. 188.On the other hand, the offences alleged against the 2nd appellant are serious and were committed over a period of 19 months. Further, we take into account the fact that the 2nd appellant’s conviction has been quashed in consequence of judicial error. Also, it is to be noted that although the 2nd appellant was sentenced to 6 years and 6 months’ imprisonment on 19 September 2014, she was released on bail by this Court on 15 January 2015. 189.As we noted in respect of the 1st appellant, we are mindful that, if we are to order a re-trial, it is appropriate that we are restrained in describing the strength of the evidence against the 2nd appellant. So, we restrict ourselves to saying that we are satisfied that on a proper consideration of the evidence by a jury a conviction of the 2nd appellant might result. Conclusion 190.In the result, in all the circumstances, we are satisfied that it is appropriate to order, and we so order, that the 2nd appellant be re-tried on a fresh Charge Sheet on the 17 Charges, set out in the draft Charge Sheet provided to the Court by Mr Caplan. Also, we order that the fresh Charge Sheet be filed with the Court within 14 days and that the appellants are brought before a judge in the District Court for Plea Day within one month. Costs 191.We direct that any application for costs by the appellants, together with written submissions, be filed with the Court within 14 days and any reply by the respondent, together with any written submissions, be filed with the Court within 14 days thereafter.
Mr Jonathan Caplan, QC and Mr Neil Mitchell, Counsel on fiat, and Ms Kasmine Hui, PP, of the Department of Justice, for the respondent Mr Michael Blanchflower, SC and Ms Maggie Wong, instructed by Winston & Strawn, for the 1st appellant Mr Tim Owen, QC, Mr M. K. Wong, SC, Mr Eric Kwok, SC and Mr Paul Wong, instructed by Hon & Co, for the 2nd appellant [1] HKSAR v Wu Wing Kit and Ye Fang (CAAC 299/2014; unreported, 5 June 2015). [2] HCCC 83/2014, in which Jack Chen, the 2nd appellant’s husband, was a defendant. By Count 3, it was alleged against Jack Chen that on and between 2 March and 11 July 2010 he dealt with over $85 million, knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence. Those monies included the $68.95 million the subject of Charge 2 against the 2nd appellant. [3] Oei HengkyWiryo v HKSAR (2007) 10 HKCFAR 98. [4] Fung Yat Sai v HKSAR (FAMC 42/2003; Determination of the Appeal Committee of the Court of Final Appeal, 19 November 2003). [5] Oei Hengky Wiryo v HKSAR (2007) 10 HKCFAR 98. [6] R v Montilla & Others [2004] 1 WLR 3141. [7] HKSAR v Wong Ping Shui (2001) 4 HKCFAR. [8] Oei Hengky Wiryo v HKSAR; page 134 G, paragraph 98. [9] Li Kwok Cheung v HKSAR (2014) 17 HKCFAR 319. [10] Pang Hang Fai v HKSAR (2014) 17 HKCFAR 778. [11] Appeal Bundle; page 28 - Admitted Facts, paragraph 6. [12] Appeal Bundle; page 28 - Admitted Facts, paragraphs 5-7. [13] Appeal Bundle; page 32 - Admitted Facts, paragraph 30. [14] Appeal Bundle; page 33 - Admitted Facts, paragraph 38. [15] Appeal Bundle; page 49 - Supplemental Admitted Facts, paragraphs 1-3. The 2nd defendant was the sole director and only shareholder of: Universal Horizon Trustee Limited; RCQ Holdings Limited; and MLC Trustee Limited. [16] Appeal Bundle - Admitted Facts, paragraph 9. [17] Appeal Bundle - Admitted Facts, paragraphs 11-2. [18] Appeal Bundle - Admitted Facts, paragraph 13: Exhibit P 43; Appeal Bundle, page 2762. [19] Exhibit P 43; Appeal Bundle E1 (1), 2766. [20] Appeal Bundle - Admitted Facts, paragraph 14. [21] Appeal Bundle - Admitted Facts, paragraph 18. [22] Appeal Bundle - Admitted Facts, paragraph 20. [23] Appeal Bundle - Admitted Facts, paragraph 20. [24] Appeal Bundle - Admitted Facts, paragraphs 21, 23. [25] Appeal Bundle - Admitted Facts, paragraph 25. [26] Appeal Bundle - Admitted Facts, paragraph 28. [27] Appeal Bundle - Admitted Facts, paragraph 32. [28] Appeal Bundle - Admitted Facts, paragraph 34. [29] Exhibit P 38: Appeal Bundle, page 2740. [30] Appeal Bundle - Admitted Facts, paragraphs 36 and 69. [31] Exhibit P 37: Appeal Bundle, page 2738. [32] Appeal Bundle - Admitted Facts, paragraph 70. [33] SHKIS=Sun Hung Kai Investment Services Ltd.; NRL=Nation Resources Ltd.; JLD=Jem Lai Dat-a remittance agent; WLE=Wui Lee Exchange Company; WHM=Wai Hing Money Exchange Ltd; AAC=Asia Aquatic Company; Sum Wan Wah=Sum Wan Wah Water. [34] Appeal Bundle, page 724. [35] Appeal Bundle, page 716. [36] Appeal Bundle, page 653. [37] Appeal Bundle; Exhibit P 38, page 690. [38] Prosecution’s Closing Submissions, page 2058 H-M. [39] Prosecution’s Written Closing Submissions, paragraph 218. [40] Prosecution’s Written Closing Submissions, paragraph 231. [41] Prosecution’s Written Closing Submissions, paragraph 38. [42] Appeal Bundle; page 2862; Exhibit P 45. [43] Appeal Bundle - Admitted Facts, paragraphs 48-9. [44] Appeal Bundle; page 3356; Exhibit P 188. [45] Appeal Bundle; pages 3361-3372; Exhibits P 190-1. [46] Prosecution’s Written Closing Submissions, paragraphs 121-139. [47] Admitted Facts, paragraph 50; Exhibit P 46. [48] Prosecution’s Written Closing Submissions, paragraph 162; Exhibit P 262. [49] Prosecution’s Written Closing Submissions, paragraph 225. [50] Prosecution’s Written Closing Submissions, paragraph 100. [51] Prosecution’s Written Closing Submissions: paragraphs 168, 337; Exhibit P 260, Appeal Bundle, page 3463. [52] Prosecution’s Written Closing Submissions, paragraphs 287-299. [53] Prosecution’s Written Closing Submissions, paragraphs 343, 346; Admitted Facts, paragraph 59. [54] Admitted Facts, paragraph 63. [55] Prosecution’s Written Closing Submissions, paragraphs 82-95. [56] Prosecution’s Written Closing Submissions, paragraph 96. [57] Prosecution’s Written Closing Submissions, paragraphs 4-6. [58] Prosecution’s Written Closing Submissions, paragraph 9; Appeal Bundle - Admitted Facts, paragraph 68. [59] Prosecution’s Written Closing Submissions, paragraph 86. [60] Prosecution’s Written Closing Submissions, paragraph 11. [61] Admitted Facts, paragraph 69. [62] Prosecution’s Written Closing Submissions, paragraph 10. [63] Admitted Facts, paragraph 80. [64] Prosecution’s Written Opening Submissions, paragraph 148. [65] Prosecution’s Written Closing Submissions, paragraphs 21-23. [66] Prosecution’s Written Closing Submissions, paragraph 23: “Effectively the HK$50 million used by Lisa Du used to buy shares in 462 came from the funds raised through the issue of the CN-C’s which in turn had gone to Goldmate and then to D2’s account”. [67] Prosecution’s Written Closing Submissions, paragraphs 77-8. [68] Prosecution’s Written Closing Submissions, paragraph 60. [69] Prosecution’s Written Closing Submissions, paragraph 422. [70] Exhibit D2/58, Appeal Bundle E3(2), p 4197. [71] Admitted Facts, paragraph 78. [72] Reasons for Verdict, paragraph 132. [73] Reasons for Verdict, paragraph 133. [74] Reasons for Verdict, paragraph 158. [75] Reasons for Verdict, paragraph 124. [76] Reasons for Verdict, paragraph 118. [77] Reasons for Verdict, paragraph 119. [78] Reasons for Verdict, paragraph 120. [79] Reasons for Verdict, paragraph 121. [80] Exhibit P 37, page 689. [81] D2 was not his client at all. [82] Reasons for Verdict, paragraph 122. [83] Reasons for Verdict, paragraph 134. [84] Reasons for Verdict, paragraph 126. [85] Reasons for Verdict, paragraph 130. [86] Reasons for Verdict, paragraph 134. [87] Reasons for Verdict, paragraph 134. [88] Reasons for Verdict, paragraph 136. [89] Reasons for Verdict, paragraph 137. [90] Reasons for Verdict, paragraph 137. [91] Reasons for Verdict, paragraph 137. [92] Reasons for Verdict, paragraph 155. [93] Reasons for Verdict, paragraph 139. [94] Reasons for Verdict, paragraph 140. [95] Reasons for Verdict, paragraph 141. [96] Reasons for Verdict, paragraph 142. [97] Reasons for Verdict, paragraph 143. [98] Reasons for Verdict, paragraph 144. [99] Reasons for Verdict, paragraph 148. [100] Reasons for Verdict, paragraph 155. [101] Reasons for Verdict, paragraph 156. [102] Reasons for Verdict, paragraph 156. [103] HKSAR v Yan Sui Ling (2012) 15 HKCFAR 146. [104] Reasons for Verdict, paragraph 152. [105] Reasons for Verdict, paragraph 152. [106] Reasons for Verdict, paragraph 152. [107] Reasons the Verdict, paragraph 157. [108] Reasons for Verdict, paragraph 159. [109] Such ‘re-deposits’ are still money laundered. [110] Reasons for Verdict, paragraph 159. [111] Pang Hung Fai v HKSAR (2014) 17 HKCFAR 778. [112] HKSAR v Pang Hung Fai, paragraph 132. [113] HKSAR v Salim (CACC 184/2013; unreported, 14 November 2014). [114] R v G and F [2012] EWCA Crim 1756 (unreported, 13 July 2012) at paragraph 36. [115] Reasons for Verdict, paragraph 122. [116] Reasons for Verdict, paragraph 124. [117] Reasons for Verdict: paragraphs 136-7 (that the Goldmate contract was in existence when she received 4 deposits to a total of over $100 million); paragraph 139 (that the 2nd appellant ever held any shares in Fulao and that the documents purporting to evidence the underlying basis for the payment came into existence as testified to by the 2nd appellant and Chen Zong Ji); paragraphs 142-4 (that she had lent money to Ye Mei and Walter Shum or transferred money to Ms Lisa Du for investment by Lin Ren Hui); paragraphs 146-150 (that she invested monies with Huang Qiang and Lin Bin; her explanation for her dealings with So Chau Hong). [118] Reasons for Verdict, paragraph 4. [119] Reasons for Verdict, paragraph 6. [120] Reasons for Verdict, paragraph 121. [121] Reasons for Verdict, paragraph 131. [122] Reasons for Verdict, paragraph 119. [123] Reasons for Verdict, paragraph 122. [124] Reasons for Verdict, paragraph 124. [125] Reasons for Verdict, paragraph 128. [126] Reasons for Verdict, paragraph 134. “D1 knew of many relevant facts. First, he knew the amount was unusually large in his professional practice. Secondly, he knew Jack Chen’s instruction was unusual as the money was destined to go from a husband’s company’s bank account to the wife’s account the following day through FKC’s Client Account. Thirdly, he knew Practice Direction P expected a solicitor in his situation of dealing with clients or potential clients’ money to make enquiries to obtain information on the nature and intended purpose of the transaction, and the source of funding.” [127] Reasons for Verdict, paragraph 134. [128] Reasons for Verdict, paragraph 137. [129] Reasons for Verdict, paragraph 139. [130] Reasons for Verdict, paragraph 159. [131] Reasons for Verdict, paragraph 159. [132] Pang Hung Fai v HKSAR, paragraph 69. [133] George v Rockett (1990) 170 CLR 104 at 112. [134] Pang Hung Fai v HKSAR, paragraphs 67-9. [135] Reasons for Verdict, paragraphs 132 and 158: “Would D1[D2] possessed of these facts, objectively consider them sufficient to lead a person to believe that the property constitutes proceeds of an indictable offence?” [136] Pang Hung Fai v HKSAR, paragraph 78. [137] Pang Hung Fai v HKSAR, paragraph 30. [138] Pang Hung Fai v HKSAR, paragraph 49. [139] Pang Hung Fai v HKSAR, paragraph 52. [140] Pang Hung Fai v HKSAR, paragraphs 55-6. [141] HKSAR v Shing Siu Ming [1999] 2 HKC 818. [142] HKSAR v Shing Siu Ming, page 825 H-I. [143] Pang Hung Fai v HKSAR, paragraph 69. [144] Pang Hung Fai v HKSAR, paragraph 77. [145] Appeal Bundle, page 460 E-G. [146] R v Galbraith (1983) 73 Cr. App. R. 124. [147] Reasons for Verdict, paragraph 112. [148] Exhibit P 151, pages 3287-3309. “ The vendor (Global Food Holdings Limited) is an investment holding company and is owned as to approximately 83.92%) by Mr Graham Chin, a Director, through 3 companies in trust for Ms Ye Fang…” [149] Appeal Bundle: Admitted Facts; page 30, paragraph 19 - Exhibits P 74 - P 80. Global Food was a company incorporated in Hong Kong; [150] Exhibit P 151, pages 3287. [151] Exhibit P 151, pages 3287-8. [152] Reasons for Verdict, paragraphs 112-116. [153] Appeal Bundle, pages 2710-2728. [154] Appeal Bundle, page 2714. [155] Exhibit P5. [156] Appeal Bundle: the witness statement of Chang Chi Tao; 115, pages 3407-3503 at paragraph 25. [157] Reasons for Verdict, paragraph 115. [158] Attorney-General v Li Fook Shiu, Ronald [1990] 1 HKC 1. [159] R v Galbraith (1981) 73 Cr App R 124. [160] Attorney-General v Li Fook Shiu, Ronald, pages 12 G-13 D. [161] R v Goddard & Another [2012] EWCA Crim 1756; also cited as R v G; R v F [2013] Crim LR 678. [162] R v Goddard & Another, paragraph 36. [163] See the Ruling of Macrae JA, sitting at first instance, in HKSAR v Hui Rafael Junior & Others (HCCC 98/2013; unreported, 13 February 2014) at paragraphs 7-9. [164] Appeal Bundle; pages 494-5. [165] Appeal Bundle; pages 4051-4076, Exhibit D2/40. [166] ‘Criminal Evidence in Hong Kong’ - Bruce & McCoy; Chapter VI, paragraph 101(1). [167] ‘Criminal Evidence in Hong Kong’ - Bruce & McCoy; Chapter VI, paragraph 101(5). [168] Appeal Bundle, page 468 A-H. [169] Exhibit P 40. [170] Appeal Bundle; page 3032, Exhibit P 140. [171] Appeal Bundle; page 38, paragraph 68. [172] Reasons for Verdict, paragraph 39. [173] Appeal Bundle; page 42, paragraph 82. [174] Section 83 E(1): “Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.” [175] HCCC 83/2014. [176] Ting James Henry v HKSAR (2007) 10 HKCFAR 632; page 652, paragraph 50. [177] Ting James Henry v HKSAR; page 652, paragraph 51. [178] HKSAR v Ng Chun To, Raymond (CACC 178/2010; unreported, 19 November 2013). [179] HKSAR v Ng Chun To, Raymond,paragraph 8. [180] R v Holgate (No. 2) [1996] 3 HKC 324 at 325 I. [181] Amended ‘Skeleton Argument on Behalf of the Second Applicant: Conviction’, paragraph 8. [182] Amended ‘Skeleton Argument on Behalf of the Second Applicant: Conviction’, paragraph 13. [183] Amended ‘Skeleton Argument on Behalf of the Second Applicant: Conviction’, paragraph 6. [184] Appeal Bundle, pages 4051-4076. [185] Au Pui Kuen v Attorney General 1979 HKLR 16. [186] Au Pui Kuen v Attorney General, page 19. [187] Au Pui Kuen v Attorney General, page 20. [188] Au Pui Kuen v Attorney General, page 21. [189] R v Holgate, page 325 I. [190] Appeal Bundle; page 2740, Exhibit P 38. [191] Appeal Bundle - Admitted Facts, paragraph 34. [192] Appeal Bundle; page 2738, Exhibit P 37. [193] Appeal Bundle; page 3042, Exhibit P 140. [194] Appeal Bundle; pages 2862-2927, Exhibit P 45. [195] Appeal Bundle; pages 3348-3350, Exhibit P 184. [196] Appeal Bundle; page 3355, Exhibit P 187. [197] Appeal Bundle; page 1402. [198] Appeal Bundle; pages 1376-7. [199] Appeal Bundle; pages 1057-1063. [200] Exhibit D 22. [201] Appeal Bundle; page 677. [202] Appeal Bundle; page 689. [203] Appeal Bundle; page 715. [204] Appeal Bundle; page 714. [205] Appeal Bundle; page 716. [206] Reasons for Verdict, paragraph 45. [207] Reasons for Verdict, paragraph 153. [208] Reasons for Verdict, paragraphs 35-6. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under CACC 299/2014